Busclean Pty Ltd (Migration)

[2021] AATA 650

Busclean Pty Ltd (Migration) [2021] AATA 650 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Busclean Pty Ltd

CASE NUMBER:  1821353

HOME AFFAIRS REFERENCE(S):          BCC2017/2316497

MEMBER:Katie Malyon

DATE:29 January 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision under review to refuse the nomination.

Statement made on 29 January 2021 at 3:49 pm

CATCHWORDS

MIGRATION – approval of a nomination – Temporary Residence Transition Nomination stream – position of Cook – adverse information in relation to the Company – Winding Up Order – financial capacity to employ the nominee for at least 2 years – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 359, 360, 363
Migration Regulations 1994, r 5.19

CASES

Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 July 2018 to refuse the application for approval of the nomination of a position in Australia under r.5.19 of the Migration Regulations 1994 (the Regulations) made by Busclean Pty Ltd T/A The Coachmen Russian Catering (the Company).

2. The Company applied for approval on 29 June 2017. Requirements for the approval of the nomination of a position in Australia are found in r.5.19 of the Regulations which contains 2 alternative streams: a Temporary Residence Transition nomination stream (r.5.19(3)); and, a Direct Entry nomination stream (r.5.19(4)). If the application is made in accordance with r.5.19(2) and meets all requirements of either stream, then the application must be approved.  If any of the requirements are not met then the application must be refused: r.5.19(5) of the Regulations.

3. In this case, the Company has applied for approval of a nomination seeking to satisfy the criteria in the Temporary Residence Transition nomination stream.  It nominated the position of Cook ANZSCO 351411 for Narinder Kumar Sharma.

4. The delegate refused the application on the basis the Company’s nomination did not satisfy r.5.19(3)(g) of the Regulations because, there was adverse information in relation to the Company and the delegate was not satisfied that it was reasonable to disregard that adverse information. Specifically, this was due to the fact that publicly available information on the ASIC website indicated that, on 25 September 2017, a Notice of Application for Winding Up Order had been made.  Although the Company was sent a procedural fairness notification on 1 June 2018 and given 28 days to respond to this adverse information, no response was received and so the delegate proceeded to refuse the nomination.  A copy of the delegate’s decision was provided to the Tribunal.    

5. No documentation was lodged with the Tribunal at the time of lodgement of the review application.

6. After reviewing ASIC’s website and being satisfied that the Company has not been wound up, the Tribunal wrote to the Company on 2 December 2020 pursuant to s.359(2) of the Migration Act 1958 (the Act) and invited it to provide a range of information to enable the Tribunal to assess whether the Company now meets all the requirements for approval of the nomination.  Relevantly, the Tribunal requested evidence of:

   ·Financial Reports prepared in accordance with Australian Accounting Standards including Profit and Loss Statements and Balance Sheets for the 2 most recent financial years;

   ·Tax Returns as lodged with the Australian Taxation Office (ATO) for the last 2 financial years; and,

   ·Business Activity Statements (BAS) as lodged with the ATO for the last 2 financial years and the current financial year to date using the ATO’s Tax Agent Portal (or Business Portal) and which have been issued with a receipt number.

7. The Tribunal’s invitation letter was sent to the email address provided by Company’s registered migration agent when he lodged the review application. The Tribunal advised the Company in its s.359(2) letter that, if the information was not provided in writing by 16 December 2020 or a request was not made on or before then for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking further steps to obtain the information. The Tribunal’s s.359(2) letter also notes that, in either of these circumstances, the Company would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. No documentation has been received from the Company within the period of the timeframe to respond to the Tribunal’s s.359(2) letter. No explanation has been provided as to why documentation requested cannot be provided and nor has the Company sought an extension of time in which to provide the information.

9. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, the Company is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal is satisfied that the invitation to provide information was sent to the correct email.  To date, the requested information has not been provided and neither the Company nor its representative has made any contact with the Tribunal to indicate that the information is forthcoming.  The Tribunal is not required to delay indefinitely making its decision.  In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the information.

11. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in this case is whether the applicant meets the requirements for approval of the nomination under the Temporary Residence Transition nomination stream set out in r.5.19(3), which is extracted in the Attachment to this decision.  For the nomination to be approved, all the requirements must be met.  If any of the requirements are not met then the application must be refused: r.5.19(5) of the Regulations.

    Future employment of the visa holder: r.5.19(3)(d)

13. Regulation 5.19(3)(d) only applies to nominees described in r.5.19(3)(c)(i) of the Regulations. It applies to a nominee who: held a Subclass 457 visa for a total period of at least 2 years in the 3 years immediately before the nominator made the nomination application; and, was employed full-time in Australia in the position in respect of which they hold their 457 visa a period of at least 2 years. For this class of person, the Regulations require that the nominator must demonstrate that the nominee will be employed on a full-time basis for at least 2 years on terms that do not expressly preclude the possibility of an extension.

14. As noted above, the delegate’s decision confirms the Company failed to respond to the delegate’s procedural fairness notification in relation to an open source check of the ASIC website which indicated that a Notice of Application for Winding Up Order had been published on 25 September 2017 in respect of the Company. The Department did not receive a response to its procedural fairness invitation letter. Accordingly, the delegate concluded that adverse information exists in relation to the Company and that it is not reasonable to disregard that adverse information. On this basis, the delegate found that the Company did not meet r.5.19(3)(g) of the Regulations.

15. Prior to sending to the Company its s.359(2) letter on 2 December 2020, the Tribunal checked the status of the registration of the Company having regard to the ASIC website. In light of the fact that the Company has not been wound up, the Tribunal invited it to forward current and updated information to demonstrate that it now meets all the requirements in r.5.19(3) of the Regulations. This includes criteria in r.5.19(3)(d) of the Regulations that the Company can demonstrate that it will employ the nominee on a full-time basis for at least 2 years.

16. The Company has failed to provide any requested information whatsoever and nor has it sought, within the prescribed period, an extension of time to do so.  

17. Based on the total absence of any current evidence regarding the recent financial performance of the Company (for example, Financial Reports, Tax Returns and BAS), the Tribunal is not satisfied the Company has demonstrated it will employ nominee Mr Sharma on a full-time basis in the position of Cook for at least 2 years. In the circumstances, the Company does not meet the requirements in r.5.19(3)(d)(i) of the Regulations.

18. Accordingly, the requirement in r.5.19(3)(d) of the Regulations is not met.

19. For the above reasons, the Tribunal is not satisfied that the Company meets the requirements of r.5.19(3) of the Regulations. The Company has not sought to satisfy the criteria in Direct Entry nomination stream and, as such, has not met the requirements in r.5.19(4) of the Regulations. Accordingly, the nomination of the position cannot be approved. Therefore, the Tribunal must affirm the decision under review.

    DECISION

20. The Tribunal affirms the decision under review to refuse the nomination.

    Katie Malyon

    
    Member

    ATTACHMENT  -  EXTRACTS FROM THE MIGRATION REGULATIONS 1994

    5.19Approval of nominated positions (employer nomination)

    …

    (2)The application must:

    (a)be made in accordance with approved form 1395…; and

    (aa) include a written certification by the nominator stating whether or not the nominator has engaged in conduct, in relation to the nomination, that constitutes a contravention of subsection 245AR(1) of the Act; and

    (b)be accompanied by the fee mentioned in regulation 5.37.

    Temporary Residence Transition nomination

    (3)The Minister must, in writing, approve a nomination if:

    (a)the application for approval:

    (i)       is made in accordance with subregulation (2); and

    (ii)      identifies a person who holds a Subclass 457 … visa granted on the basis that the person satisfied the criterion in subclause 457.223(4) of Schedule 2; and

    (iii)     identifies an occupation, in relation to the position, that:

    (A)is listed in ANZSCO; and

    (B)has the same 4-digit occupation unit group code as the occupation carried  out by the holder of the Subclass 457 … visa; and

    (b)the nominator:

    (i) is, or was, the standard business sponsor who last identified the holder of the Subclass 457 … visa in a nomination made under section 140GB of the Act or under regulation 1.20G or 1.20GA as in force immediately before 14 September 2009; and

    (ii)      is actively and lawfully operating a business in Australia; and

    (iii)     did not, as that standard business sponsor, meet regulation 1.20DA, or paragraph 2.59(h) or 2.68(i), in the most recent approval as a standard business sponsor; and

    (c)either:

    (i)       both of the following apply:

    (A)in the period of 3 years immediately before the nominator made the application, the holder of the Subclass 457 …visa identified in subparagraph (a) (ii) has:    

    (I)held one or more Subclass 457 visas for a total period of at least 2 years; and

    (II)been employed in the position in respect of which the person holds the Subclass 457 … visa for a total period of at least 2 years (not including any period of unpaid leave);

    (B)the employment in the position has been full-time, and undertaken in Australia; or

    (ii)      all of the following apply:

    (A)the person holds the Subclass 457 … visa on the basis that the person was identified in a nomination of an occupation mentioned in sub-subparagraph 2.72(10)(d)(iii)(B) or sub-subparagraph 2.72(10)(e)(iii)(B);

    (B)the nominator nominated the occupation;

    (C)the person has been employed, in the occupation in respect of which the person holds the Subclass 457 … visa, for a total period of at least 2 years in the period of 3 years immediately before the nominator made the application; and

    (d)for a person to whom subparagraph (c)(i) applies:

    (i)       the person will be employed on a full-time basis in the position for at least 2 years; and

    (ii)      the terms and conditions of the person’s employment will not include an express exclusion of the possibility of extending the period of employment; and

    (e)the terms and conditions of employment applicable to the position will be no less favourable than the terms and conditions that:

    (i)are provided; or

    (ii)would be provided;

    to an Australian citizen or an Australian permanent resident for performing equivalent work in the same workplace at the same location; and

    (f)either:

    (i)       the nominator:

    (A)fulfilled any commitments the nominator made relating to meeting the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; and

    (B)complied with the applicable obligations under Division 2.19 relating to the nominator’s training requirements during the period of the nominator’s most recent approval as a standard business sponsor; or

    (ii)      it is reasonable to disregard subparagraph (i); and

    Note Different training requirements apply depending on whether the application for approval as a standard business sponsor was made before 14 September 2009 or on or after that date.

    (g)either:

    (i)       there is no adverse information known to Immigration about the nominator or a person associated with the nominator; or

    (ii)      it is reasonable to disregard any adverse information known to Immigration about the nominator or a person associated with the nominator; and

    (h)the nominator has a satisfactory record of compliance with the laws of the Commonwealth, and of each State or Territory in which the applicant operates a business and employs employees in the business, relating to workplace relations.